The lawsuit names Virgin Mobile USA, its Australian counterpart, and Creative Commons Corp., a Massachusetts nonprofit that licenses sharing of Flickr photos, as defendants.

The picture of 16-year-old Chang flashing a peace sign was taken at an April church carwash by Alison's youth counselor, who posted it on his Flickr page, according to Alison's brother, Damon. In the ad, Virgin Mobile printed one of its campaign slogans, "Dump your pen friend," over the picture.

The ad also says "Free text virgin to virgin" at the bottom.

The experience damaged Alison's reputation and exposed her to ridicule from her peers and scrutiny from people who can now Google her, the family charged in the lawsuit.

Ok, forget for a moment that Damon seems to think a headline is a tagline, the creative commons licence used simply asks for attribution, which the ad has in regards to the photo. They forgot that models used in advertising must sign a release as well.

In the Flickr discussion forums, a thread called Virgin Mobile advertising campaign using Flickr photos already back the 29th of June. See Duncans TV adland for more images of posters in the campaign itself. It's hit all the major papers in Australia including The Age. In each article Damon Chang points to the 'derogatory' line as a reason to sue, which I'm fairly sure is some sort of journalistic misquote to hang the story on. Lets just get the idea properly explained shall we? The V-sign happy gal has dumped her pen friend because she can now text friends for free. Got it? There's the funny. Pen friend is now phone friend. Hardy-har-har. Still, Virgin should have had a model release anyway and should get sued for that alone - not for any perceived derogatoryness-ness. Bah, you know what I mean.

Don't get me started on rights and rules in photography. Here in the US, especially, there has been a serious problem with willful ignorance of the golden rule. If someone ripped of an ad Host (the agency) made, think they wouldn't sue?Respect by and for creatives, across discipline and within, really needs a boost, I think. Then issues like this wouldn't come up--pros would work with pros instead of trying to do everything as cheaply as possible.

As a completely independent entity from Virgin Mobile Australia, Virgin Mobile USA had no involvement in the advertising campaign at issue, which we understand was run in Australia. Virgin Mobile USA does not conduct business or marketing in Australia or any countries outside of the United States. We have replied as such to plaintiff's counsel, who has been directed to Virgin Mobile Australia.

The image was shot in the US, in Texas to be exact, by a US photographer of a US citizen. Texas has no statutory right to privacy OR publicity. In that respect it is a common law state. There MAY be some personal rights vested in Ms. Chang’s image but they will not be the same as in a state with statutory rights in place.

The second issue is that Flickr is, IIRC, a Canadian company. So Virgin Australia will have actually sourced the image from Canada not the US.

Third, Virgin Australia is NOT the same company as Virgin in the US. Virgin itself, the parent, is a British company but it only franchises the brand, it does not own or operate all the other companies that use it’s name. So the question arises if Ms. Chang can even sue Virgin for something that a completely different foreign company did. The image was not used in the US by the US franchisee, only in Australia by the Australian franchisee.

Lastly, an Australian lawyer looked at this, as well, and doubts that even if Virgin Australia was sued in Australia that the Australian courts would agree that an image of a non-Australian person, Ms. Chang, shot in the US by a US photographer, Justin Ho-Wee Wong, and sourced from outside Australia, Flickr in Canada, could even be actionable under Australian law for privacy or publicity purposes.

It will be interesting to see how it ends, but it is probably going to end badly.

-- John

I'm curious about the outcome of this one, for example if they find the photographer at fault for 'releasing' images without proper model releases, will that kill CC licenses for images containing people? What happens when trademarks (think: Times Square) is involved in a CC-licensed shot and used in a major advertising campaign in the US, and a trademark owners gets peeved and hires lawyers? tricky.

Chang's parents sued Virgin Mobile for misappropriation of her likeness, and the facts would also have supported a claim for violation of her right of publicity. They brought other claims against Creative Commons, which they dismissed shortly after filing the lawsuit. The case, which was subsequently dismissed for lack of personal jurisdiction over Virgin Mobile, is interesting because it highlights the fact that somebody seeking to use a photograph needs to worry not just about copyright law, but also misappropriation and rights of publicity.

The Chang case involved a clearly commercial use of her likeness. As a general matter, you should never use someone's name or photograph in advertising or promotion of your website or blog without permission.